Path 2

Path 2

Whip It Good

August 10, 2011

The modern prison era begins in 1961, the first of eight consecutive years when the incarceration rate plummeted while the crime rate spiked as the Warren Court issued a series of landmark decisions that made it harder to convict repeat felons. Subsequently, rues Peter Moskos, a CUNY professor and author of 2008’s Cop in the Hood: My Year Patrolling Baltimore’s Eastern District, the incarceration rate caught up with, and then shot past, the crime rate.

In 1972, America’s prison population was just over 300,000. That’s a fraction of the 500,000 correctional officers employed today to control the more than 2.3 million prisoners currently held in what Moskos calls America’s “Bizzaro World of mass incarceration.” “That is too many” prisoners, he rightly declares in his new book, In Defense of Flogging.

Flogging, which the author says in his acknowledgments was written to match its provocative title, argues for the morality, efficiency, and cost savings of giving convicts the option to take two tough lashes to the tuchas in place of every year sentenced. The book argues against itself, though, alternating between calls for prison reform and calls to tear down the system entirely—eventually leaning toward the more extreme and rockier course.

“Given the choice between five years in prison and ten brutal lashes, which would you choose?” he asks. If you’d rather be flogged, he argues, then it’s immoral to say others ought to be imprisoned, leaving aside the obvious problem that any convict would prefer a lighter sentence and many would see flogging as one. His is an obviously strained conceit, but it works in the negative at least, as a way of vivifying what’s wrong with the system we have now.

The idea of flogging seems darker when Moskos shrugs off its association with slavery, arguing that the “sea of black and brown faces” one is likely to see in “any jail or prison in America” would be better off getting whipped rather than doing time.

In calling for a return to the lash, Moskos offers a laundry list of anti-prison arguments sometimes at cross-purposes with one another: The U.S. imprisons both more people and a higher percentage of its population than any other nation except possibly North Korea; holding prisoners is vastly expensive; prisons have always failed at serving a rehabilitative function; prisons are a reform gone wrong, quickly becoming soul-crushing totalitarian institutions where grown men are treated like children; prisons warehouse many of the mentally ill; the prison system is a post-civil rights era means of controlling the black population and diminishing its vote. And while Moskos never concedes the obvious truth that isolating active criminals does diminish the crime rate, he does note that prisons are by their nature criminogenic.

It’s a fair indictment of the prison system—perhaps more than fair if you’re serving time, like some of the inmates he briefly quotes—but like an indictment, it’s only part of the picture. It’s what political scientist James Q. Wilson, a central figure in crime policy for nearly 40 years and one whose name is glaring in its omission from Flogging, might call a cost-analysis, with no consideration of benefits such as how isolating active criminals does in fact impact the crime rate.

Cop in the Hood gave Moskos’s street-level view of the futility of America’s drug prohibition, a theme that dovetails nicely with Flogging, where he observes that “the inability to keep even prisons free of drugs is perhaps the best illustration of the futility of the war on drugs.” Noting that “many prison-worthy offenses—especially drug crimes—are economically demand-motivated,” he contrasts those criminals with pedophiles (a rare group he thinks should be imprisoned, along with “psychopathic killers” and “terrorists”)—since a “child victim doesn’t go searching out a criminal abuser. But that’s exactly what a drug addict does.”

He mentions Bernie Madoff as an example of someone who ought to be flogged, rather than “costing the public even more money.” It’s an odd choice, but it fits with the mawkish accounts in both of his books of the “good old days” (his quote marks) on the Baltimore force, when officers were free to dispense “beat-and-release” justice to wife-beaters (his example) and other unspecified “wrongdoers.” “Without a corporal option,” Moskos laments, “there’s no middle ground between letting someone go and locking him up.”

But that middle ground was the smooth turf of racially and ethnically homogenous neighborhoods, often with police officers to match—which gives a “those-were-the-days” edge to the nostalgia that forms part of Moskos’s more broadly anti-institution and by extension anti-reform worldview.

Looking farther back and again fondly on the proverbial village idiot who “may have been mocked, beat up, and even abused, but he was still the village’s idiot,” he laments that “reformers got involved.” Striking a Foucauldian note, he complains that “almshouse, orphanage, public hospital, and prison all shared a similar and more nefarious purpose: to effectively manage and remove society’s least wanted.” Despite the abuse the “idiot” takes from his community, Moskos nonetheless prefers that to having him separated from it by institutions.

His distaste for institutional reformers is such that at one point he bizarrely compares calling for less incarceration to “asking for comfier seats on the train to Auschwitz: It sort of misses the big picture.”

The big picture, as Moskos sees it, starts not in the 1960s, which he touches on just briefly over, but with Robert Martinson’s seminal 1974 Public Interest essay, “What Works?” The article, based on a 1,400-page review by Martinson and two other researchers of 231 previous studies of prisons, was commissioned and then shelved by New York out of fear that its grim conclusions could cost the state millions of dollars in federal funds for building and maintaining prisons. In it, Martinson reached the famous conclusion that “[w]ith few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (Italics in the original.)

Martinson, who Moskos notes killed himself in 1980, expected his findings to help bring an end to the prison system. Instead, his article, quickly nicknamed “Nothing Works,” captured an era’s pessimism as policy makers conceded the helplessness of prison reform without giving up on the prisons themselves.

Moskos, who holds up Martinson as a model, saying he “knew damn well that prisons do not work,” has nonetheless tapped into the same vein of benighted fatalism, offering a solution—corporal punishment in place of prison—that has no chance of implementation, rather than any path toward achievable reforms.

What might change the equation for more practical-minded reformers is the economic downturn, which has transformed prisons from a growth industry to a costly burden on states, a development Moskos notes only in passing, calling it “a thin silver lining to cloudy economic times.”